United States v. Ray

No. 80-5182 (6th Cir. July 2, 1981)

The court affirms appellant's conviction for willfully interfering with Office of Surface Mining officials who entered onto appellant's property to conduct a warrantless inspection of surface mining operastions as authorized by § 517 of the Surface Mining Control and Reclamation Act. The court rejects appellant's contention that the inspectors' entry without a search warrant violates the Fourth Amendment. Under cases previously decided by the Sixth Circuit, a warrantless inspection in the traditionally highly regulated mining industry, does not violate the Fourth Amendment where there is statutory authority for the inspection and there is no evidence of invasion of privacy.

Counsel for Appellant
Donald B. Roe
501 Layfayette Dr., Oak Ridge TN 37830
(615) 483-4310

Counsel for Appellee
Richard Harris, Ass't U.S. Attorney
201 Fed. Bldg., Knoxville TN 37902
(615) 637-9300

Before: EDWARDS, Chief Judge, WEICK and MERRITT, Circuit Judges.

[11 ELR 20791]

PER CURIAM.

In this case defendant-appellant Ray owned a tract of undeveloped mountain land upon which he was apparently undertaking strip mining operations. When inspectors from the Office of Surface Mining (OSM) entered the area with a Deputy United States Marshal to make an inspection "without advance notice" as authorized by 30 U.S.C. § 1267 (Supp. II 1978), appellant approached them, blocked the government vehicle in which they were riding and ordered them off the premises. The inspectors and the Marshal left, leaving the vehicle on the site, and subsequently these charges alleging willful interference with OSM inspectors (in violation of 30 U.S.C. § 1294 (Supp. II 1978)) were filed. After trial to a jury and a finding of guilt, Judge Robert Taylor sentenced appellant to 12 months' probation. This appeal was filed claiming that the entry of the OSM inspectors without a search warrant violated the Fourth Amendment.

This court has previously dealt with these exact Fourth Amendment issues in Marshall v. Nolichuckey Sand Company, 606 F.2d 693 (6th Cir. 1979), cert. denied, 446 U.S. 908 (1980). In that case, we held an open site inspection in the traditionally highly regulated mining industry constitutionally permissible where there was no evidence of invasion of the privacy interest of home or office and statutory provisions allowed the inspection without warrant. Our opinion in Nolichuckey was based in major part upon the Supreme Court's discussion in Marshall v. Barlow, Inc., 436 U.S. 307 (1978).

Since we believe that Nolichuckey and Barlow's, Inc. are controlling precedents which require affirmance of the District Court's judgment in this case;

Now therefore, the judgment of conviction is affirmed.¹

1. After typesetting of this opinion, this court received notice of the United States Supreme Court's decision in Donovan v. Dewey, 49 U.S.L.W. 4748 (June 17, 1981), which further confirms the judgment entered above.